SOMIREDDY VEERAIAH Vs. NAGABANDI RANGANAIKULU

JUDGEMENT

(1.) This second appeal arises out of Suit O.S. No. 101/4 of 1957 on the file of the learned Subordinate Judge, Warangal. The necessary facts are: Nagabandi Ranganaikulu, the plaintiff, instituted the suit firstly for possession of the land. The plaint however was subsequently amended including the relief of redemption of usufructuary mortgage. It was alleged inter alia that defendants 1 to 3 and Ali Mirza, father of defendants 1 and 2, mortgaged the suit land with the plaintiff for a sum of Rs. 15,000 on first Thir, 1358-F. A registered usufructuary mortgage deed was executed on that date. The same land were previously mortgaged for Rs. 2,000 with defendants 4 and 5 by Mohammed Mirza, one of the mortgagors (1st defendant), on 19th Shehrewar, 1356-F. It was contended by the plaintiff that in view of the terms of the usufructuary mortgage the debt of defendants 4 and 5 has been completely liquidated. The plaintiff therefore asked the defendants 4 and 5 to deliver possession of the suit lands to the plaintiff. There were proceedings under section 145, Criminal Procedure Code in which possession of defendants 4 and 5 was declared. Since defendants 4 and 5 refused to deliver possession in spite of their mortgage being satisfied, the plaintiff instituted the present suit. The plaintiff also asked for mesne profits for two years at the rate of Rs. 950 per year.

(2.) Defendants 1 to 3, the mortgagors at first admitted the claim of the plaintiff in their written statement of 24th December, 1952. They however filed another written statement on 25th April, 1953 contending that the suit of the plaintiff should be dismissed. Their contention is that the plaintiff got his mortgage deed by fraud and that the plaintiff paid only Rs. 1,100. On 17th December, 1955 the defendants. 1 to 3 and the plaintiff filed a compromise memo. In that compromise defendants 1 to'3 confirmed the written statement which they had filed on 24th December, 1952 and alleged that the plaintiff's suit may be decreed. Defendants 4 and 5, who are the main contestants, resisted the suit on various grounds. They contended that the mortgage in favour of the plaintiff was without consideration and was nominal, and that the Sub-Court had no jurisdiction to entertain the suit. They also denied that their debt was discharged and that they should hand over possession to the plaintiff. They also resisted the claim of mesne profits. It was stated by them that defendants 1 to 3 executed an agreement of sale in favour of defendants 4 and 5 in respect of 6 acres of land agreeing to sell the same for a sum of Rs. 6,000. The agreement was executed on 20th April, 1952. It was therefore contended that the plaintiff was not entitled to recover possession of the suit lands. The 4th defendant Seshagiri Rao filed a petition on 26th July, 1956 stating that he gives up his defence and that the plaintiff's suit therefore may be decreed. The plaintiff seems to have filed a rejoinder but nothing particular is mentioned therein.

(3.) In view of these pleadings, the learned Subordinate Judge framed appropriate issues and recorded the evidence of the parties. On that evidence he held that the agreement of sale was executed by defendants 1 to 3 in favour of defendants 4 and 5 on 20th April, 1952, but found that as no suit could be filed for specific performance on that agreement since it would be time-barred the agreement was unenforceable in a Court of law. He consequently decreed the plaintiff's suit for possession He held that the entire loan amount was discharged in so far as defendants 4 and 5 were concerned. The trial Court did not grant the mesne profits to the plaintiff. Aggrieved by that decision, both the plaintiff as well as the 5th defendant preferred separate appeals to the District Judge, Warangal. The plaintiff was dissatisfied because he was not given mesne profits. The 5th defendant was dissatisfied because although the agreement of sale was declared to have been executed by defendants 1 to 3 in his favour, his possession on that basis was not sustained by the trial Court. Both these appeals were considered by the learned District Judge logether. The learned District Judge agreed with the contention of the Subordinate Judge that no effect can be given to the agreement of sale because the suit for spec fic performance of such an agreement would be time-barred. The District Judge however allowed the appeals and remanded the case to the trial Court for a fresh disposal. This was mainly done because he was of the opinion that the amendment which was allowed on the petition of the plaintiff ought not to have been allowed by the trial Court. He therefore directed the trial Court to dispose of the suit omitting from consideration the amendment which he had allowed. Dissatisfied with that order of remand, two C.M.As. were filed by the plaintiff before this Court. These C.M.As. came up for consideration before my learned brother Sanjeeva Rao Naidu, J. The learned Judge set aside the remand order of the D strict Judge and directed that the matters which have already been decided by the District Judge in his judgment should not be dealt with again. The learned Judge also held that the trial Court was right in allowing amendment of the plaint and . directed the District Judge to dispose of the appeals on merits. He particularly duected the District Judge to determine whether any amount is due and payable to the 5th defendant under the usufructuary mortgage in his favour and if he agreed with the finding of the learned Subordinate Judge that no amount need be paid as the mortgage is discharged, then he should pass a decree straightaway for possession in favour of the plaintiff. If on the other hand, the learned District Judge were to find that some amount as determined by him is due and payable to the 5th defendant under his mortgage he should proceed to consider whether a preliminary decree for red maption should not bs passed in the matter. He also asked him to consider the question of the mesne profits claimed by the plaintiff.